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Espionage vs. Surveillance

According to NSA documents published in Glenn Greenwald's new bookNo Place to Hide, we now know that the NSA spies on embassies and missions all over the world, including those of Brazil, Bulgaria, Colombia, the European Union, France, Georgia, Greece, India, Italy, Japan, Mexico, Slovakia, South Africa, South Korea, Taiwan, Venezuela and Vietnam.

This will certainly strain international relations, as happened when it was revealed that the U.S. is eavesdropping on German Chancellor Angela Merkel's cell phone -- but is anyone really surprised? Spying on foreign governments is what the NSA is supposed to do. Much more problematic, and dangerous, is that the NSA is spying on entire populations. It’s a mistake to have the same laws and organizations involved with both activities, and it's time we separated the two.

The former is espionage: the traditional mission of the NSA. It's an important military mission, both in peacetime and wartime, and something that's not going to go away. It's targeted. It's focused. Decisions of whom to target are decisions of foreign policy. And secrecy is paramount.

The latter is very different. Terrorists are a different type of enemy; they're individual actors instead of state governments. We know who foreign government officials are and where they're located: in government offices in their home countries, and embassies abroad. Terrorists could be anyone, anywhere in the world. To find them, the NSA has to look for individual bad actors swimming in a sea of innocent people. This is why the NSA turned to broad surveillance of populations, both in the U.S. and internationally.

If you think about it, this is much more of a law enforcement sort of activity than a military activity. Both involve security, but just as the NSA's traditional focus was governments, the FBI's traditional focus was individuals. Before and after 9/11, both the NSA and the FBI were involved in counterterrorism. The FBI did work in the U.S. and abroad. After 9/11, the primary mission of counterterrorist surveillance was given to the NSA because it had existing capabilities, but the decision could have gone the other way.

Because the NSA got the mission, both the military norms and the legal framework from the espionage world carried over. Our surveillance efforts against entire populations were kept as secret as our espionage efforts against governments. And we modified our laws accordingly. The 1978 Foreign Intelligence Surveillance Act (FISA) that regulated NSA surveillance required targets to be "agents of a foreign power." When the law was amended in 2008 under the FISA Amendments Act, a target could be any foreigner anywhere.

Government-on-government espionage is as old as governments themselves, and is the proper purview of the military. So let the Commander in Chief make the determination on whose cell phones to eavesdrop on, and let the NSA carry those orders out.

Surveillance is a large-scale activity, potentially affecting billions of people, and different rules have to apply – the rules of the police. Any organization doing such surveillance should apply the police norms of probable cause, due process, and oversight to population surveillance activities. It should make its activities much less secret and more transparent. It should be accountable in open courts. This is how we, and the rest of the world, regains the trust in the US’s actions.

In January, President Obama gave a speech on the NSA where he said two very important things. He said that the NSA would no longer spy on Angela Merkel's cell phone. And while he didn't extend that courtesy to the other 82 million citizens of Germany, he did say that he would extend some of the U.S.'s constitutional protections against warrantless surveillance to the rest of the world.

Breaking up the NSA by separating espionage from surveillance, and putting the latter under a law enforcement regime instead of a military regime, is a step toward achieving that.

"Government-on-government espionage is as old as governments themselves, and is the proper purview of the military."

You've made two very distinct assertions here, and I fully agree with only one of them.

"Government-on-government espionage is as old as governments themselves"

Yes, and espionage is equally as evil and as necessary as government itself. Only fools believe otherwise. However....

and is the proper purview of the military.

Why? Why is SigInt distinctively the proper purview of our military? The CIA is a civilian organization (nominally). I kind of believe that espionage should be managed by civilian agencies or departments within the Executive branch, and that much of the NSA's excess power and lack of restraint come from it's (unwise) location within the military.

Being part of our military grants data-cullers too much authority and respect -- far beyond what is legitimately deserved for what they do. (And they deserve quite a bit of respect -- just not the near-infinite amounts they acquire when lumped together with men who put their own lives on the line daily.)

Why shouldn't most U.S. SigInt be managed by the State Department? (I know, such re-organization would cumbersome and unlikely. But, as a theoretical matter -- as a fundamental issue of governance -- why should espionage of this kind be done thru our military?)

What benefit accrues to our nation in organizing espionage this way? Or in retaining this organization, in the face of its real and obvious drawbacks?

Nice white wash you got there. No mention of any obviously illegal activity. A very .. antiseptic, take on the security apparatus. The US has been entrusted with the Internet. Not only has that trust be violated, there will never be a chance to put the cat back in the bag. It's too late.
You can argue that "police norms" will improve the situation, assuming you are unfamiliar with what "police norms" actually are. If you sweep the actions of the FBI under the rug, forget about Hoover, human nature, etc. you still end up with a situation where the populace has to trust some group of people in the government to watch another group. If nothing else these revelations have proven that is fundamentally impossible. No one can be trusted (nor should be), either in government or the security industry. The world won't be trustful of you because you say that WA LA, NOW we can be trusted because we met this bar we set for ourselves!
As some one part of the system, I can see why you'd prefer the middle road but, Articles like this seem like servile pandering compared against the known violation of laws that you or I would spend the rest of our lives in prison for. Flagrant violations of the constitution and general morals. A system completely open to abuse. The NSA listened to phone sex of service men and women and their spouses using your tax money. Does that sound like "looking for terrorists" to you?

I will not accept that it is ok for any government to spy on any other government just for the hell of it. Perhaps if the government being spied upon is literally an enemy, not just perceived but actually an enemy.

Saying that, 'that's what they do' is simply wrong (or at least should be), incomplete and misleading and attempts to make us shrug it all off.

US tax dollars are better spent not spying on security council allies to gain leverage during negotiations when selling an illegal war in the middle east. Subverting your allies security through backdoored equipment and planting recording devices also leaves them wide open for adversaries to exploit. It also breaks every agreement you have signed with those countries, proving your word and reputation as an ally is meaningless. Those countries will now be looking for other economic partners, which are less likely to break into their embassies.

@FluffytheObeseCat: Good point. Here's how I personally see it: if war is diplomacy by other means, then so is espionage and covert cyber operations. Since both are tools available to the civilian leadership for enforcing its foreign policy, they should both be subordinate to it.

I have to ask, has the NSA spied on members of Congress in an effort to influence legislation that granted wishes to the NSA. It's an interesting question. If the answer is yes, then there is no stopping the NSA and what it's going to. If the answer is yes, then the NSA has the power to determine election winners via it's intel gathering and the release of selective damaging candidate intel. The NSA can target politicians/candidates who question the NSA and support politicians who support/fear the NSA.

If you look back at some of the technologies that Congress has mandated, it might make sense. Then you look at the sponsors of the legislation, it only opens a big box of questions.

And, while you're at it, split the CIA into two very different parts with very different mandates:
(1) A foreign intelligence and analysis part, which should not be under the military.
(2) A covert military group (which has acted historically against Iran, Cuba, Grenada, Haiti, Vietnam, Cambodia, Afghanistan, Iraq, Iran again, and so on.) This is clearly something that belong under the military (and needs to be closely constrained).

"Government-on-government espionage is as old as governments themselves, and is the proper purview of the military."

The relations between two countries are not exclusively or even primarily military. If you think otherwise, you are seriously deluded.

There are many dimensions to country-to-country relationships, of which military is only one (and may well be less important than others). Countries have political relationships, economic relationships, social relationships, cultural relationships, and so on.

So, if you really want is for one country to understand another (to the benefit of both and to the rest of us on this Earth), you will not place espionage powers under the purview of any one of these dimensions (e.g., the military).

Instead, you will place it under the purview of an independent agency that will attempt to put all the data together, and analyze it so we can better understand what our friendly countries and other countries are up to or are trying to do.

"Spying on foreign governments is what the NSA is supposed to do"--
Bugging embassies is contrary to the spirit and the letter of the Vienna Convention on Diplomatic Relations, which the USA has ratified. See article 22 in particular. To say the NSA is supposed to bug embassies is to say that the USA does not mean what it says when it signs treaties. I'm not naïve, I know governments lie and cheat all the time. But it's still dishonest and weakens the USA's position when it would like to hold other countries to various treaties.

"but is anyone really surprised?"--
On today's Fresh Air, Terry Gross asks Glenn Greenwald about his reporting on embassy bugging operations. In particular, she reads a paragraph from the WaPo book review that Bruce Schneier linked to a few days ago. In response, Greenwald says that the extent of the USA's ability to penetrate even fortified embassies is news of interest to citizens of the countries being spied on.

@Tom239:
> Bugging embassies is contrary to the spirit and the letter of the Vienna Convention on Diplomatic Relations, which the USA has ratified. See article 22 in particular. To say the NSA is supposed to bug embassies is to say that the USA does not mean what it says when it signs treaties

This also apply to all other countries who signed the same conventions and are caught in similar spy schemes. Do these countries end up having insurmountable credibility problems? It doesn't seem to be the case. In fact, even caught, they keep on spying.

In the grand scheme of things, these countries simply found out that the benefits of spying trump image issues regarding international convention and treaties. And this isn't especially surprising considering how old and widespread spying has been historically.

I am no professor in philosophy, but I want to point out something and I think this is important to keep in mind: (And I went with the brief version here.)

"Spying on foreign governments is what the NSA is supposed to do."

This sounds alot like saying "waging war on foreign countries is what the military is supposed to do". Another notion based on a generalization that doesn't really explain anyone's policy, or not as politics anyway. It may explain someones 'practice' though.

The appeal of an assortment of phenomena so to speak, or realities if you will, make alot more sense if applying the guise of 'intention' to it, because of how an 'action' then makes sense as being a willful endeavor (as if 'intended'), either for an individual or a group of sorts; while speculations or statements of 'motivations' hardly makes good sense, but probably sounds good regardless due to the performative act itself, of really wanting to explain something after the fact. Any notion of there being a true or original intent goes out the window so to speak. :|

As it is now, the non-state targets of NSA are designated by military objectives, i.e. terrorists. A law enforcement NSA would have very different targets: drug users, traffic ticket evaders, small-time tax cheats, etc. This is literally the worst idea Scheneier has every had.

Whatever obama, or for that matter, any american official, says or signs is worth *nothing*.

They are quite indiscriminately spying and eavesdropping on friend as on foe, they are (sometimes even mass) murdering innocent people, and they break contracts before the ink is dry, not to even talk about worthless promises.

Frankly, I think the real problem isn't to do with nsa, fbi or obama. It's rather to do with the fact that the usa is financing itself on robbing, stealing, betraying, and forcing everyone incl. their own citizens.
Obviously this can't go on forever.

And that's the real problem. The usa is trying to delay by any means, incl. wanton wars, its demise. And it's less and less successful.

What we experience is the evil daemon in a horror movie who has been deadly wounded and knows that he's dying but who tries some last, desperate attempts of terrorizing the people.

I do not see strength in usa's actions and behaviour, I see the weakness of a moribund ex-superpower trying desperately to avoid a situation where it'll be presented with the bill for all its utter crimes against mankind.

While I think that this blog isn't a place for purely political discussions I also feel it incredibly (+#&%) how Bruce Schneier in a way nice-paints and even in some way defends the despicable crimes committed by his country.

Gladly, we will not not need to tolerate the usa terror regime for much longer.

(And, yes, I know that usa is not equal to "all americans", many of whom are victims, too)

Thanks for the perfectly pure distillation of the professional bedwetter's credo. Radicalizers could be anyone, anywhere in the world. So the government should look over your shoulder while you're watching porn just in case you are one and they need to make fun of you. Criminals in general could be anyone, anywhere in the world. So FBI goons should be out there checking to make sure you're not one.

Terrorists are a threat like killer bees are a threat. Scared of them? Then don't go where they are and hit their hive with a stick.

On the other hand, psycho FBI goons and NSA targeteers are murderers. They kill extrajudicially like Honduran paramilitaries. They plan it, they direct it, they do it, they get away with it. They are an actual threat, every day. Ask Ibragim Todashev. Ask Imam Luqman Abdullah. Ask al-Awlaki's kid. Ask garden-variety dissidents, who also could be terrorists, like Occupy Houston who were going to get shot by snipers who FBI didn't bother to charge.

Terrorists are no threat to me. The threat is this criminal enterprise of a state.

This is a complex issue, but I think the key to understanding Bruce's proposal is the division of the problem domains.

State-Focused Security: security with respect to foreign nations

Anti/Counter-Terrorism: security with respect to non-state entities intent on committing acts of terrorism

There are some issues with the division when one considers certain cases (non-state terrorist actors supported by states, for example), but it makes some sense.

Each domain calls for different approaches and each contains different tradeoffs, and so the military/civilian division of responsibility proposed in the essay can be viewed as a mapping, in a sense, from the problem domains to the bureaucracies (meant non-pejoratively) designated as responsible. Given the domains, there is a logic to the division of responsibilities proposed.

I also view the policy proposal here in conjunction with Bruce's technological proposals. That is, I understand the policy approach here as one piece of an overall solution. Another piece is the technological goal of "truly secure" information and communication systems.

When you combine all of that, there's nothing alarming here from a civil liberties vantage, and in fact the proposed solution clearly weights civil liberties quite heavily. I frankly don't understand some of the comments above; perhaps those from countries with weaker civil liberties traditions were led astray by the mention of "police" in the essay.

I'm not sure I agree with the overall proposal (there are obviously many issues to be fleshed out) but it's a very interesting idea, and one that merits research and further development.

Espionage is not a military mission. It serves political goals. It serves military goals only if we are or are likely to go to war with the nation being spied on. The NSA was created when there were turf wars within the CIA about human intelligence gathering vs. technical (electronic) intelligence gathering. The NSA was to handle the latter, though the CIA retained some. Both agencies were forbidden by law to spy on US citizens unless there was strong evidence of connections to foreign agents or presumptive terrorists. The FBI was to handle domestic spying and terrorist investigations.

FBI bungling of 9/11/01 and political maneuvering resulted in the NSA being given (illegally) the task of investigating people in the USA who might be terrorists or terrorist supporters. The NSA never was an investigatory agency, so it's approach was to spy on everyone and be unable to use the quadrillions of pieces of data. This is far worse than the FBI's inability to piece together clues to track down specific terrorists or terrorist supporters.

In summary, our present situation is the worst of all worlds. We have a powerful agency that is succeeding in knowing everything about everyone at all times. It can't use the data proactively, but will be able to tell us where a terrorist bomber bought gas a week before a bombing. The FBI will receive clues about terrorists and ignore them, misfile them, or misinterpret them. When it goes after a terrorist it will use eighty agents, seventy-eight of whom will be nowhere near the suspect. The two nearby won't act until a fifty-person local law enforcement SWAT team assists. Homes and businesses in a four block radius will be evacuated, and the FBI will direct the SWAT team to the wrong location resulting in the death of an 80-year-old deaf man. The death will be classified as unavoidable, just as the continued growth of federal spying and investigation and traveler-groping agencies will be unavoidable.

Power will concede nothing without a demand. A demand coming from the barrel of a gun. [Liberal democratic reforms] only further delay the process and are ignored at will by sellouts that run the machine (see PBS United States of Secrets), including corp reps, 'lawyers' and 'skeptics'.

Here's a proposal for a new political platform: free device, internet access and 3D printer w/Liberator file and supplies for 1 year for everybody over the age of 16.

This week's -- and next week's -- Frontline is a pretty thorough account of how NSA got to where it is today. I believe it's pretty well documented because if it weren't everyone connected with the show right down to the guy who delivers late-night pizza to WGBH would be sued down to the last nickel.

There is ramifications for spying on an ally, just ask Israel who's defence force members are being denied visas to enter the US. Even Israeli civillian tourists saw an increase in visa rejections that started last year.

Hey what is going on here.
This is supposed to be an easy going forum on discussing computer (and other) security related issues and in years of reading it I have not come across such a number of very heated posts on a single issue.
All I can say is - Well done Bruce as you must have stuck a nerve somewhere with your practical proposal of raining in NSA's cowboys by separating their espionage from their surveillance activities.
Good on you Bruce

“…the NSA is spying on entire populations. It’s a mistake to have the same laws and organizations involved with both activities, and it's time we separated the two.” – Bruce S.

I agree.

But, this communications dragnet on US citizens is now entrenched and probably very hard to dislodge.

As, others posters have noted, this mass dragnet of communications is not only illegal but highly abusive.

“…the real question that we'd all like to know is...... who are they looking for? Terrorists? or dissidents?” - mike~acker

That is a very real problem. It doesn’t stop at dissidents it could go to lawyers of dissidents and family members and so on.

I don’t think giving the FBI the get-of-jail free card for aiding and abetting the NSA is the answer. It only makes the hay stack of wrong doing larger.

In a prior post, Clive laid out a good case that the NSA and other spy agencies have too few boots on the ground to effectively gather actionable information. I agree.

These spy agencies have been using dragnet electronic collection tactics – far remove – from the battle field - as a crutch (and most likely a sordid political leaver to increase their funding allocations). This must end now.

Because of the lack of any viable concrete solutions to stopping this mass electronic collection machine at this time I would suggest cutting these spy agencies budgets by 30 percent to 60 percent immediately.

They have gotten far too much budget money for far too long - and abused it. Then we should start looking at breaking up the NSA and their lap dog the FISA court.

Twitter is locking accounts based on geolocation in a manner that affects users of Tor Project's onion router Tor--unless connection is from an IP address not on the full-functionality-denied (and sign-in denied?) list, or user/connection is excepted for some reason.

Considering the implications, here's hoping for more examination and discussion.

"Any organization doing such surveillance should apply the police norms of probable cause, due process, and oversight to population surveillance activities. It should make its activities much less secret and more transparent. It should be accountable in open courts. This is how we, and the rest of the world, regains the trust in the US’s actions."

I strongly agree that this is the main objective, the truly important battle to be fought. Although the Snowden revelations and earlier revelations of government wiretapping upset many people, what also had me very upset was the Bush era expansion of state secrets privilege to not only suppress particular bits of information from being used as evidence in public court cases, but to quash entire cases from being heard at all, a abominable practice that Obama sadly continued. There is an attempt at a legislative remedy called State Secrets Protection Act, tabled in the Senate since around 2007, that prescribes a back room process between the government and federal judges in which the government is required to produce reasonable facsimiles for subpoenaed documents with all information deemed by the judge to be relevant to the case and not harmful to national security, even if it happens to be classified.

While individual privacy is a concern, having details of our lives reside more or less anonymously in databases does not directly harm us. It is only when that information is accessed and how it is used that can really harm us. We are harmed if our reputation is damaged by revealed secrets, when our physical property is confiscated, or when our physical person is detained or blocked from free movement in any way. As I see it, the danger is far less if the government's activities and procedures are public and subject to scrutiny and democratic change, if individuals have access to court remedies when harmed, and if the government's ability to use such dragnet surveillance is restricted by a stringent warrant procedure that includes access control on the data requiring digital warrants. Thus casual perusal should be impossible without a digital warrant. I think if we work at it, the question doesn't have to be either the public privacy is protected or the government can use these powerful tools to find terrorists. With the right effort and understanding we should be able to do both, where dragnet surveillance becomes a useful tool to protect the public from terrorism, but also the public can still have an effective privacy because stored data remains for the most part untouched, and when it is used, subject to stringent controls with heavy penalties for illegal usage.

I'm not sure how useful the espionage vs. surveillance distinction is, since surveillance and counter-surveillance are proper domains of classic espionage operations. But the military/police distinction is a very important one I think. We listened to conservative blowhards posturing post-9/11 about how lilly-livered liberals thought the war on terror should be a police operation, an obvious mistake in their eyes. They pooh-pooh'd the idea that Al Qaeda should be arrested and stand trial instead of blown up or incinerated by high tech military equipment. But prosecutions have been quite successful, and in either case identifying and tracking the location of Al Qaeda members, following the money and movements, is primarily good old fashioned police style detective work. And the collateral damage is drastically reduced. For the most part, the nominal "War on Terror" really should be police work, albeit of the most sophisticated kind, when it comes to finding and capturing sleeper cells embedded in civilian populations. Calling it "police" work doesn't mean it's done by policemen. Such work is probably best handled by the FBI, with the included ability to liaise with intelligence sources to share information. Perhaps in remote ungoverned areas, like Waziristan, Yemen, and Somalia, they are beyond the reach of police methodology.

The fact that Stasi got the NSA wishlist from a low ranking german signals intelligence officer means that the german secret service knew what the nsa was up to from early on. The "no spy agreement" that was proposed by the german government would be a joke given the early knowledge of the germans, and the Stasi officer claims that the surprise of the german government is just simulated.

He undermines this claim by stating that the inner ministry of germany ordered all NSA related content of the Stasi archives to be removed and shipped to the United States

So well, even targeted surveillance can be bad, or very bad, if your "target list" contains 50 pages filled with target names in a small font.

So much for the claim that the nsa is targeting the general population because they want to search for terrorists. Targeting the population was their goal before, they just had not the technology for that in the 70's so they had to do "targeted surveillance" on 50.000 people....

Then, the technology emerged, and with their sites in germany, the finally monitored 1/3 of all german phone calls, much prior to 9/11:

The only "mass surveillance" is done by Google and Facebook. Only they are interested in gathering as much data as possible and use them for profiling the entire population, because for them that has an added value.

NSA may collect a uge amoutn of data, but at best that is not "mass surveillance", but "bulk collection". Maybe you can only say that NSA conducted/conducts mass surveillance, by collecting almost all communications, in war and crisis countries like Iraq and Afghanistan. But even there their goal is not profiling the entire population, but picking out terrorists and their supporters.

For NSA, bulk collections are means to the end of what is listed in their presidentially approved target lists.

Please step down from that "mass surveillance" accusation, because it has almost nothing to do with reality and therefore makes it impossible to talk about solutions for actual problems.

1)terrorists don't use telecommunication, the same as big drug dealers, they have personal (human) messenger who travel and forward message. so, the basis of spying is not fight against terrorism than fight to make totalitarianism (which is again with aim to make profit for wall street). some young al qaeda members can use internet, but older people who have higher position are much more skilled and they have security advisers. simply al qaeda officials are not separated from state security apparatus in Afghanistan, Pakistan or anywhere else, they have knowledge and they know how NSA or CIA are functioning. therefore mass spying is with solely purpose of making totalitarian capitalism, to secure profit of wall street.

2)You forgot that FBI can be the same as terrorist, just they have the state behind themselves. FBI spied and spread rumors against Martin Luther King, they spied antiwar activists as domestic terrorists, they shot black panthers, etc, etc. FBI has history of killing people who are against colonial politics, against racism, etc. Your story about police is story for small children who don't know history of police in America. If I remember well, 1992 many Afroamericans stood up against racism after cops killed some Afroamerican, and gov used even military to break protest. So, security apparatus is totally racist and they will shoot people if gov says so, therefore they should never have information about (American or other) citizens. Information can be misused, it doesn't matter is it military rules or police rule, the both are racist and colonist: killing in the name of profit of wall street. Slavery is aboished on the paper but not in reality, Afroamericans and Latinoamericans are exploited by businessmen, by rich people, even they are domestic citizens, what to say about economic slavery in Iraq and other countries? There is slavery in and out of America, FBI and CIA care to keep such order, and it is clear work for rich people, not for citizens of America.